Installment Land Sale Contract With Power of Sale - Miller & Starr - California

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From Miller & Starr, California Real Estate Forms, by Alexander Hamilton. © West Publishing Co. Reprinted by consent.
INSTALLMENT LAND SALE CONTRACT WITH POWER OF SALE
THIS INSTALLMENT LAND SALE CONTRACT WITH POWER OF SALE ("Agreement"), made and
entered into this _____ day of ________, _____, by and between ________ [vendor's name and capacity]
("Vendor"), and ________[vendee's name and capacity] ("Vendee"), whose address is ________[address of vendee];
and ________[trustee's name and capacity] ("Trustee").
Recitals
A. Vendor is now the owner of certain real property situated in the County of ________, State of
California, commonly known as ________[property street address], and described as follows: ________[attach
property description] (the "Property").
B. Vendor has agreed to sell and Vendee has agreed to buy the Property on the terms and conditions
hereinafter set forth;
C. Vendor shall retain legal title to the Property as a security interest in the Property until the payment of
the balance of the Purchase Price (as hereinafter defined) has been paid by Vendee to Vendor as set forth below.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
Section 1. Purchase Price.
Vendor agrees to sell, and Vendee agrees to buy the Property for the sum of ________ ( $_____) (the "Purchase
Price"), lawful money of the United States, as hereinafter more fully set forth.
Section 2. Payment of Purchase Price.
Vendee shall pay the Purchase Price as follows:
(a) Vendee shall pay to Vendor the sum of ________ Dollars ( $_____) (the "Down Payment") as a down
payment.
(b) The balance of Purchase Price of ________ ( $_____) shall be paid by Vendee to Vendor with interest
at the rate of _____ percent per annum on any balance unpaid. Said sum shall be paid in installments of
________ ( $_____) on the _____ day of each month commencing ________ and continuing thereafter until
________.
Each payment shall be credited first to interest, with the balance to principal. This Agreement will require
_____ years and _____ months to complete payment in accordance with its terms. Vendor shall make payment of
any installments on existing first, second and/or third deeds of trust in accordance with paragraph (c) below.
Total Monthly payment is to include the following:
Principal and interest $_______________
Tax and Fire Insurance Impounds $_______________
Service Charges $_______________
________ $______________________________
________ $______________________________
Total Payment $_______________
[Optional provision:]
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From Miller & Starr, California Real Estate Forms, by Alexander Hamilton. © West Publishing Co. Reprinted by consent.
INSTALLMENT LAND SALE CONTRACT WITH POWER OF SALE
THIS INSTALLMENT LAND SALE CONTRACT WITH POWER OF SALE ("Agreement"), made and
entered into this _____ day of ________, _____, by and between ________ [vendor's name and capacity]
("Vendor"), and ________[vendee's name and capacity] ("Vendee"), whose address is ________[address of vendee];
and ________[trustee's name and capacity] ("Trustee").
Recitals
A. Vendor is now the owner of certain real property situated in the County of ________, State of
California, commonly known as ________[property street address], and described as follows: ________[attach
property description] (the "Property").
B. Vendor has agreed to sell and Vendee has agreed to buy the Property on the terms and conditions
hereinafter set forth;
C. Vendor shall retain legal title to the Property as a security interest in the Property until the payment of
the balance of the Purchase Price (as hereinafter defined) has been paid by Vendee to Vendor as set forth below.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
Section 1. Purchase Price.
Vendor agrees to sell, and Vendee agrees to buy the Property for the sum of ________ ( $_____) (the "Purchase
Price"), lawful money of the United States, as hereinafter more fully set forth.
Section 2. Payment of Purchase Price.
Vendee shall pay the Purchase Price as follows:
(a) Vendee shall pay to Vendor the sum of ________ Dollars ( $_____) (the "Down Payment") as a down
payment.
(b) The balance of Purchase Price of ________ ( $_____) shall be paid by Vendee to Vendor with interest
at the rate of _____ percent per annum on any balance unpaid. Said sum shall be paid in installments of
________ ( $_____) on the _____ day of each month commencing ________ and continuing thereafter until
________.
Each payment shall be credited first to interest, with the balance to principal. This Agreement will require
_____ years and _____ months to complete payment in accordance with its terms. Vendor shall make payment of
any installments on existing first, second and/or third deeds of trust in accordance with paragraph (c) below.
Total Monthly payment is to include the following:
Principal and interest $_______________
Tax and Fire Insurance Impounds $_______________
Service Charges $_______________
________ $______________________________
________ $______________________________
Total Payment $_______________
[Optional provision:]
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(c) Vendor under this Agreement shall make due and timely payments of installments in the amount of
$_____ principal and interest on the first deed of trust and note in the original amount of $_____ in favor of
_______________, current unpaid balance of which is ________ with interest paid to ________.
[Optional provision:]
Vendor under this Agreement shall make due and timely payments of installments in the amount of $_____
principal and interest on the second deed of trust and note in the original amount of
$_____ in favor of
_______________, the current unpaid balance of which is ________ with interest paid to ________.
Vendor hereby indemnifies and agrees to save Vendee harmless from any default in connection with the
obligation or obligations secured by the above first or second deeds of trust. In the event any such installment
payments on the obligations secured by said deeds of trust shall be in default, Vendee under this Agreement may
make payments thereof at its option and credit such payments to the obligation herein secured. In the event Vendee
makes a payment upon the deeds of trust that is in excess of the amount required to be made under this Agreement,
such excess shall be credited on the next installment or installment payments that may become due under this
contract, and Vendee shall not be required to pay such excess in addition to the regular payment of monthly
installments under this Agreement.
(d) Upon recordation of this Agreement, Vendor and Vendee will obtain policies of title insurance from
________, with cost to be borne by ________.
(e) The basis upon which the tax estimates in this Agreement are made is the tax billed for the fiscal year.
(f) At any time after the calendar year in which this Agreement is recorded, Vendee may prepay without
penalty all or any portion of the balance due Vendor or due on any other encumbrance on the property when the
terms of such encumbrance so provides. In such event any payments made by Vendee shall be credited against
the balance of the obligation owed by Vendee to Vendor as set forth in (c) above. Any prepayment penalty shall
be paid by Vendee and shall not reduce the balance owed to Vendor.
Section 3. Appointment and Powers of Trustee.
Upon recordation of this Agreement, Vendor and Vendee irrevocably grant, transfer, and assign their respective
rights, titles, and interests to the Property herein to Trustee in trust for purposes of securing Vendor's and Vendee's
obligations herein, and confer upon Trustee the following powers:
(a) Power to convey to Vendee legal title upon full satisfaction of Vendee's obligation to Vendor, upon
instructions from Vendor or his or her successor in interest.
(b) power to foreclose under power of sale below, and issue a deed upon foreclosure and sale. Said deed
shall convey title without covenant or warranty, expressed or implied, and any recitals contained therein of any
matters or facts shall constitute proof of the truthfulness thereof. Any person, including Vendor, Vendee or
Trustee may purchase at such sale. The parties do not intend hereby to alter in any manner their rights as
Vendor or Vendee, but rather to vest the Trustee with title so as to create powers coupled with an interest, and
Vendor and Vendee shall retain the rights and obligations imposed upon them by California Civil Code Section
2985 and all other applicable laws and statutes.
Section 4. Possession.
Vendee shall be entitled to possession of the Property upon recordation of this Agreement. Vendor's interest in
the Property is security for payment of balance owed Vendor, and for performance of all terms and conditions to be
performed by Vendee hereunder.
When the vendee receives possession, it is not required to occupy the property physically and it can rent the
property to a tenant. When the vendee is given possession under certain specified conditions that restrict his or her
use of the property, a violation of these restrictive conditions may permit the vendor to rescind the agreement. Even
when the vendee is not given possession of the property by the terms of the agreement, the vendor must be able to
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place the vendee in physical possession of the property when the vendor's obligation to convey title arises.
The vendee in possession has the obligation to maintain the property, regardless of any express covenant in the
contract. The vendee in possession has the same duty to avoid waste to the property that a beneficiary under a deed
of trust, a life tenant, or a tenant in possession would have. The vendor can enjoin the commission of waste, but
since the contract of sale has the same attributes of a security instrument as a deed of trust, the vendor may not be
able to terminate the contract unless the value of the property becomes insufficient to secure the balance due on the
contract, and it may not be able to recover damages unless the vendee's waste is in "bad faith."
Section 5. Assignment of Rents.
Vendee hereby absolutely and irrevocably assigns to and confers upon Vendor the right, power and authority,
during the continuance of this Agreement, to collect the rents, issues, and profits of the Property, reserving unto
Vendee a license, prior to any default by Vendee in payment of any indebtedness secured hereby or in performance
of any agreement hereunder, to collect and retain such rents, issues, and profits as they become due and payable.
Upon any such default, Vendor may at any time without notice, either in person, by agent, or by a receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter
upon and take possession of the Property or any part thereof, sue in its own name for or otherwise collect such rents,
issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation
and collection, including reasonable attorney fees, upon any indebtedness secured hereby, and in such order as
Vendor may determine. The entering upon and taking possession of the Property, the collection of such rents, issues,
and profits, and the application thereof as aforesaid shall not cure or waive any default or notice of default hereunder
or invalidate any act done pursuant to such notice.
Section 6. Beneficiary Statement.
On the written demand of the Vendee or authorized agent, made at any time before, or within two months after,
the recording of a notice of default under this contract, if the power of sale herein is to be exercised, or otherwise
made more than thirty (30) days prior to entry of the decree of foreclosure, and upon the payment of $15 or such
other amount authorized by law, Vendor or its authorized agent shall prepare and deliver to the person demanding it
a written statement showing:
(a) the amount of the unpaid balance of the obligation secured by this Agreement and the interest rate
together with the total amounts, if any, of all overdue installments of either principal or interest, or both;
(b) the amounts of periodic payments hereunder, if any;
(c) the date on which the obligation is due in whole or in part;
(d) the date on which real estate taxes and special assessments have been paid, to the extent such
information is known to Vendor;
(e) the amount of hazard insurance in effect and the term and premium of such insurance, to the extent such
information is known to Vendor;
(f) the amount in an account, if any, maintained for the accumulation of funds with which to pay taxes and
insurance premiums; and
(g) the nature, and if known, the amount of any additional charges, costs, or expenses paid or incurred by
Vendor that have become a lien on the Property as part of the obligation secured hereby.
Section 7. Power of Sale.
(a) If Vendor elects to foreclose by exercise of the power of sale in this Agreement, Vendor will also
deposit with Trustee this Agreement and any receipts and evidence of expenditures made and secured as Trustee
may require. If notice of default has been given as then required by law, and after lapse of the time that may
then be required by law, after recordation of the notice of default, Trustee, without demand on Vendee, will,
after notice of sale having been given as required by law, sell the Property at the time and place of sale fixed by
it in the notice of sale, either as a whole or in separate parcels as Trustee determines, and in any order that it
may determine, at public auction to the highest bidder. Trustee may postpone sale of all or any portion of the
Property by public announcement at the time and place of sale, and from time to time after that may postpone
the sale by public announcement at the time fixed by the preceding postponement, and without further notice
make the sale at the time fixed by the last postponement; or Trustee may, in its discretion, give a new notice of
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sale. Vendor may rescind any notice of default at any time before Trustee's sale by executing a notice of
rescission and recording it. The recordation of the notice will constitute a cancellation of any prior declaration
of default and demand for sale and of any acceleration of maturity of amounts owing hereunder affected by any
prior declaration or notice of default. The exercise by Vendor of the right of rescission will not constitute a
waiver of any default then existing or subsequently occurring, or impair the right of Vendor to execute other
declarations of default and demand for sale, or notices of default and of election to cause the Property to be
sold, nor otherwise affect this Agreement, or any of the rights, obligations, or remedies of Vendor or Trustee.
After sale, Trustee will deliver to the purchaser its deed conveying the property sold, but without any covenant
or warranty, express or implied. The recitals in the deed of any matters or facts will be conclusive proof of their
truthfulness. Any person, including Vendee, Trustee, or Vendor, may purchase at that sale. If allowed by law,
Vendor, if it is the purchaser at such sale, may credit the amount owing under this Agreement toward payment
of the purchase price (or for endorsement of the purchase price as a payment hereunder if the amount owing
exceeds the purchase price). Vendee expressly waives any right of redemption after sale that Vendee may have
at the time of sale or that may apply to the sale.
(b) Trustee, upon the sale, will make (without any covenant or warranty, express or implied), execute and,
after due payment made, deliver to a purchaser and its heirs or assigns a deed or other record of interest, as the
case may be, to the Property sold, which will convey to the purchaser all the title and interest of Vendee in the
Property and will apply the proceeds of the sale in payment:
(i) first, of the expenses of the sale together with the expenses of the trust, including, without
limitation, attorney fees, that will become due on any default made by Vendee, and also any sums that
Trustee or Vendor have paid for procuring a search of the title to the Property subsequent to the execution
of this Agreement; and
(ii) second, in payment of the amounts then remaining unpaid hereunder, and the amount of all other
monies with interest in this Agreement agreed or provided to be paid by Vendee.
Trustee will pay the balance or surplus of the proceeds of sale to Vendee and its successors or assigns as its
interests may appear.
Section 8. Substitution of Trustees.
Vendor, or any successor in ownership of any indebtedness secured hereby, may from time to time, by written
instrument, substitute a successor or successors to any trustee named herein or acting hereunder, which instrument,
executed by the Vendor and duly acknowledged and recorded in the office of the recorder of the county or counties
where the Property is situated, shall be conclusive proof of proper substitution of such successor trustee or trustees,
who shall, without conveyance from the predecessor trustee, succeed to all its title, estate, rights, powers, and duties.
Said instrument must contain the name of the original Vendee, Trustee, and Vendor hereunder, the book and page
where this Agreement is recorded, and the name and address of the new trustee.
Section 9. Amendment of Power of Sale.
In the event any changes, amendments, or modifications are enacted to the Civil Code or other codes of the
State of California affecting foreclosures under power of sale, trustee powers or other matters contained in this
Agreement, the provisions hereinabove shall be deemed amended in conformity with such new legislation upon its
effective date. Pertinent legislation includes, but is not limited to, Division III, Part Four, Title XIV, Chapter 2 of the
California Civil Code.
Section 10. Defense of Actions.
Vendee shall appear and defend Vendor or trustee in any action or proceeding brought against Vendor or trustee
by a third person arising by reason of the relationship between the parties herein created by this contract or
purporting to affect the security or rights of the Vendor or trustee, and to pay all costs and expenses, including
reasonable attorney fees in any such action or proceeding in which Vendor or trustee may appear. If Vendee shall
fail to appear and defend Vendor or trustee, any expense, including reasonable attorney fees, incurred by Vendor or
trustee in their own defense or in the defense of each other, shall be added to the balance due under this agreement
and shall bear interest at the rate provided for in Section 2(b) above or at the maximum interest rate allowed by law,
whichever is greater, until the same has been paid in full.
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Section 11. Delivery of Grant Deed upon Vendee's Performance.
Trustee or Vendor shall deliver to Vendee a grant deed of the above real property as hereinabove provided for,
at such time as Vendee has paid so Vendor, as hereinabove provided, the entire balance due directly to Vendor under
the provisions of Section 2(b) above.
Section 12. Taxes.
Vendee hereby assumes and agrees to pay before delinquency any and all taxes and assessments hereafter
falling due on the Property. If Vendee shall fail to pay any of said taxes or assessments on or before the due date
thereof, Vendor may at its option declare a default under this Agreement or may pay said taxes and assessments and
add any amounts so paid to the balance due Vendor under the terms of this Agreement. Any sums so paid by Vendor
and added to the balance due under this Agreement shall bear interest at the rate provided for herein or the
maximum interest rate provided by law, whichever is greater, until the same has been paid in full.
Section 13. Insurance.
(a) Vendee further agrees that from and after the date of this Agreement, and until such time as all balances
due to Vendor have been paid, Vendee shall obtain and keep in force at all times, at Vendee's sole expense, the
following insurance:
(i) Casualty Insurance. Casualty insurance insuring the Property against fire, and extended coverage
(including "all risk" coverage, earthquake and volcanic-action insurance, and flood and surface water
insurance, if applicable) for the full replacement cost of the improvements constructed on the Property,
with deductibles and the form and endorsements of the coverage as selected by Vendor.
(ii) General Liability Insurance. A policy of commercial general liability insurance (occurrence form)
having a combined single limit of not less than ________ Dollars ( $_____) per occurrence and ________
Dollars ( $_____) in the aggregate, providing coverage for, among other things, blanket contractual
liability, premises, products and completed operations, and personal and advertising injury coverage.
(iii) Workers' Compensation and Employer's Liability Insurance. Workers' compensation insurance
having limits not less than those required by state statute and federal statute, if applicable, and covering all
persons employed by Vendee in the conduct of Vendee's operations on the Property. This must include the
all-states endorsement and, if applicable, the volunteer's endorsement, together with employer's liability
insurance coverage in the amount of at least ________ Dollars ( $_____).
(iv) Personal Property Insurance. "All risk" property insurance, including boiler and machinery
comprehensive form, if applicable, covering damage to or loss of any equipment of Vendee and coverage
for the full replacement cost, including electronic data processing equipment, and coverage for the full
replacement cost of the equipment, including business interruption of Vendee. If the property of Vendee's
invitees is to be kept on the Property, the insurance should include warehouser's legal liability or bailee
customers' insurance for the full replacement cost of the property belonging to invitees and located on the
Property.
(b) General Insurance Provisions.
(i) Insurance Companies. Insurance required to be maintained by Vendee shall be written by
companies licensed to do business in the state in which the Property is located and having a "General
Policyholders Rating" of at least A, or a higher rating if required by a lender having a lien on the Property,
as set forth in the most current issue of "Best's Insurance Guide."
(ii) Certificates of Insurance. Vendee shall deliver to Vendor certificates of insurance for all insurance
required to be maintained by Vendee prior to the date Vendee takes possession of the Property. Vendee, at
least ten (10) days prior to expiration of the policy, shall furnish Vendor with certificates of renewal or
"binders." Each certificate will expressly provide that the policies are not cancelable or otherwise subject to
modification except after thirty (30) days' prior written notice to the parties named as additional insureds in
this Agreement. However, the certificate will further provide that in the case of cancellation for
nonpayment of premium, the cancellation will not take effect until at least (10) days' notice has been given
to Vendor. If Vendee fails to maintain any insurance required in this Agreement, Vendee shall be liable for
all losses and costs resulting from that failure; Vendor shall have the right, but not the obligation, to obtain
insurance on behalf of Vendee, and Vendee shall immediately on demand pay Vendor the premiums on the
insurance; and Vendor may declare a default under this Agreement. In the event Vendee promptly fails to
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